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In Tabesh v. Canada (Citizenship and Immigration), 2004 CanLII 76104 (CA IRB), the Immigration Appeal Division (IAD) considered whether a foreign national whose purported marriage was not legally recognized could nevertheless qualify for the family class as a common-law partner or conjugal partner. The appeal arose after the sponsorship was refused because the marriage was found invalid under British Columbia law. The IAD held that the three categories in paragraph 117(1)(a)—spouse, common-law partner and conjugal partner—are alternative means of establishing membership in the family class. Where a marriage is found formally invalid, the immigration decision-maker should also consider whether the relationship satisfies the requirements of either of the other categories. Key Principle Where an application is made on the basis of marriage but the marriage fails to meet the formal requirements for legal recognition, the visa officer should consider whether the applicant may nevertheless qualify as a common-law or conjugal partner under s. 117(1)(a). The IAD may also consider all three categories on appeal, including on its own initiative. However, the applicant must provide sufficient evidence establishing the relevant relationship. A purported marriage, by itself, does not establish a conjugal relationship. Evidence may include intimacy, emotional ties, exclusivity, interdependence, joint decision-making, communications, financial support and other evidence demonstrating the nature of the relationship. Background Rita Tabesh sought to sponsor Kourosh Nasr Esfahani as her spouse. The couple participated in a marriage ceremony in North Vancouver on February 10, 2001. The purported marriage was conducted by an individual who was described as an Iranian marriage official, while the foreign applicant participated through a power of attorney. The IAD found that there was no evidence that the person who solemnized the marriage was registered under the British Columbia Marriage Act, and there was also no evidence that a power of attorney could satisfy the statutory requirement that both parties be physically present at the marriage ceremony. The marriage was therefore not legally recognized in British Columbia. The visa officer had considered only whether the applicant qualified as a spouse. The IAD therefore raised the issue of whether the applicant could alternatively qualify as a common-law or conjugal partner under s. 117(1)(a). Court Findings • An Invalid Marriage Does Not Preclude Alternative Family-Class Categories The IAD rejected the Minister’s argument that it could only consider whether the applicant was a spouse. It held that the wording of the legislation permits consideration of the overall refusal of the visa application, including whether the applicant qualifies under another category within the same family-class provision. • Conjugal and Common-Law Status Must Be Considered Where Marriage Fails The IAD held that where the formal requirements of a legally recognized marriage are not met, the relationship evidence available to the officer may also be relevant to determining whether the parties qualify as common-law or conjugal partners. This avoids repeated applications and appeals concerning essentially the same relationship. • The Applicant Must Establish the Conjugal Relationship With Evidence Although the IAD considered the alternative categories, the evidence did not establish either one. There was no cohabitation, eliminating common-law status, and the evidence was also insufficient to establish a conjugal relationship of at least one year. The record primarily consisted of evidence intended to establish a legal marriage rather than evidence of intimacy, emotional ties, exclusivity, interdependence or joint decision-making. • The Evidence Was Insufficient to Establish Membership in the Family Class The IAD concluded that the evidence did not establish that the applicant was a spouse, common-law partner or conjugal partner. Consequently, he was not a member of the family class and humanitarian and compassionate considerations were unavailable under s. 65 of the IRPA. Outcome The IAD dismissed the appeal. Although it recognized that an applicant whose marriage is invalid may potentially qualify as a common-law or conjugal partner, the evidence in this case did not establish either relationship. Tabesh is therefore significant for establishing the principle that the family-class inquiry under s. 117(1)(a) should not necessarily end with a finding that a purported marriage is invalid; the alternative partner categories may also require consideration.   Case Citation: Tabesh v Canada (Citizenship and Immigration), 2004 CanLII 76104 (CA IRB) Prepared by:  Dr. Muhammad Abrar (Barrister and Solicitor) Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and Statistics Analyst Latest News Read More Read More Read More Read More Read More Read More Read More Read More

The Federal Court considered a judicial review of an Immigration Appeal Division (IAD) decision dismissing an appeal concerning a spousal sponsorship application. The marriage, performed only through a Roman Catholic ceremony in Germany, was not legally valid under German law because marriages in Germany must be contracted before civil authorities. The applicant asked the IAD to convert the appeal from a spousal sponsorship to a conjugal-partner application under the Tabesh approach. The IAD declined, finding insufficient evidence to establish a conjugal relationship. The Court upheld the decision, emphasizing that any Tabesh conversion is discretionary and that the applicant bears the burden of providing evidence supporting the alternative category. Key Principle A request to convert a spousal sponsorship appeal into a conjugal-partner application is not automatic. Even assuming the IAD possesses authority to make such a conversion, the discretion must be supported by sufficient credible evidence establishing that the parties were in a conjugal relationship for at least one year before the sponsorship application. A mere assertion that the couple satisfies the definition of a conjugal partner is insufficient. Background The Canadian sponsor began communicating with his Eritrean partner through Facebook Messenger in June 2020. They first met in person in Germany in August 2021 and married in a Roman Catholic ceremony shortly afterward. The sponsor filed a spousal sponsorship application in January 2022. The immigration officer refused the application because the religious marriage was not valid under German law. The applicant appealed to the IAD and later requested that the matter be converted into a conjugal-partner application. Despite extensions of time and repeated opportunities to provide evidence, the applicant did not submit evidence establishing a qualifying conjugal relationship. Court Findings • Tabesh Conversion Is Discretionary The Court noted that the Tabesh conversion is an IAD-created approach whose legal authority is uncertain. Previous Federal Court decisions, including Tang and Nanji, recognized that, even assuming the authority exists, the decision to permit conversion is discretionary. The IAD therefore was not required to convert the application merely because the marriage was invalid. • The Applicant Bears the Burden of Establishing a Conjugal Relationship The Regulations require a conjugal partner to have been in a conjugal relationship for at least one year before the application. The Court held that the applicant was responsible for providing sufficient evidence to support the requested conversion. Simply relying on the statutory definition without identifying evidence establishing a conjugal relationship was a significant deficiency. • Facebook Communication Did Not Establish Conjugality Although the parties began communicating through Facebook Messenger in June 2020, the Court found that this evidence did not demonstrate a conjugal relationship. The parties first met in person in August 2021, and the sponsorship application was submitted in April 2022. The applicant’s assertion that there was a “real possibility” of a conjugal relationship before April 2021 was speculative and did not satisfy the one-year requirement. • No Procedural Fairness Breach The Court rejected the argument that the applicant was denied an opportunity to present his case. The applicant received multiple opportunities to provide documents and submissions, including extensions from the IAD, but failed to substantiate the proposed conjugal relationship. There was no automatic entitlement to an oral hearing in these circumstances. Outcome The Federal Court dismissed the judicial review application, finding that the IAD reasonably refused to proceed with the Tabesh conversion and that there was no breach of procedural fairness. The Court also expressed serious reservations about the precedential value of Tabesh, noting that its proposition that officers must consider alternative common-law or conjugal relationships is less than persuasive.   Case Citation: Stifanos v. Canada (Citizenship and Immigration), 2025 FC 1391 (CanLII) Prepared by:  Dr. Muhammad Abrar (Barrister and Solicitor) Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and Statistics Analyst Latest News Read More Read More Read More Read More Read More Read More Read More

In Rosso v. Canada (Citizenship and Immigration), 2022 CanLII 49188 (CA IRB), the Immigration Appeal Division (IAD) considered whether a Canadian sponsor and a Cuban applicant had established a genuine conjugal relationship for at least one year before the sponsorship application. The visa officer refused the application on the basis that the couple had not demonstrated circumstances beyond their control preventing them from marrying or establishing a common-law relationship. The IAD rejected that approach and allowed the appeal, finding that there is no requirement for exceptional circumstances or an impediment to marriage or common-law cohabitation. The central question is whether the evidence establishes a genuine conjugal relationship. Key Principle A conjugal partnership is not an exceptional category and does not rank below marriage or common-law partnership. The three relationships identified in s. 117(1)(a)—spouse, common-law partner and conjugal partner—are on equal footing. An applicant therefore does not have to demonstrate that circumstances beyond the parties’ control prevented them from marrying or living together as common-law partners. The determination instead focuses on whether the relationship is sufficiently “marriage-like”, considering the totality of the evidence and factors such as shared shelter, sexual and personal behaviour, social activities, economic support, children and the parties’ overall interdependence. These factors must be applied flexibly according to the circumstances of the particular couple. Background Vincenzo Rosso, a 75-year-old Canadian citizen, applied in April 2018 to sponsor Gisel Mora Alvarez, a 45-year-old Cuban citizen, as his conjugal partner. The applicant’s two daughters were also included in the sponsorship. Their relationship had begun in 2012 and continued for almost a decade by the time of the IAD hearing. The couple had spent significant periods together in Cuba and Canada. The applicant had travelled to Canada three times, while the appellant made numerous trips to Cuba. The couple had discussed marriage and made efforts to marry in Cuba in 2014, but the marriage did not occur. The visa officer refused the application without an interview, concluding that the couple had not shown circumstances beyond their control preventing them from marrying or establishing a common-law relationship. Court Findings • No Exceptional Circumstances or Legal Barrier Is Required The IAD expressly rejected the proposition that an applicant must establish an exceptional circumstance or legal impediment preventing marriage or common-law cohabitation. A person may qualify as a conjugal partner even where there is no such barrier. • Conjugal Partnerships Are Equal to Spousal and Common-Law Relationships The IAD relied on Haer and Daoust in holding that the Regulations do not establish a hierarchy among spouse, common-law partner and conjugal partner. The existence of an opportunity to marry or establish common-law status does not, by itself, defeat a conjugal-partner application. • The Relationship Must Be Assessed as a Whole The IAD considered shared shelter, sexual and personal behaviour, social activities, financial support, assistance between the partners, relationships with children and plans for marriage. Although there were significant gaps in the couple’s visits, the majority of the evidence supported a genuine relationship. • Strong Financial, Emotional and Social Interdependence Supported Conjugality The appellant had provided monthly financial support since 2013, including money for groceries, house repairs and other expenses. The couple communicated frequently, maintained a sexual and monogamous relationship, supported one another, interacted with each other’s families and had developed relationships with the applicant’s daughters. The IAD found these factors demonstrated a serious and marriage-like commitment. • Evidence Must Be Considered in Its Totality The IAD emphasized that genuine relationships should not be assessed by searching for perfection or isolated inconsistencies. The proper approach is to consider the “big picture”, including the full history of the relationship and its personal, cultural and social circumstances. Outcome The IAD found that the couple had established, on a balance of probabilities, a genuine conjugal relationship lasting for many years. Although the gaps in physical visits raised concerns, those concerns were insufficient to overcome the substantial evidence supporting the relationship. The appeal was allowed, the refusal was set aside, and the application was directed to continue processing.   Case Citation: Rosso v Canada (Citizenship and Immigration), 2022 CanLII 49188 (CA IRB) Prepared by:  Dr. Muhammad Abrar (Barrister and Solicitor) Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and Statistics Analyst Latest News Read More Read More Read More Read More Read More Read More